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Intervening In An Illinois Divorce
A divorce definitely includes two spouses. A divorce probably includes children who were the product of that marriage. But, sometimes a divorce can involve third parties such as parents of the spouses, corporations the spouses own, or other third parties who have an interest in the parties’ marital assets.
When a third party has some significant interest in a couples’ divorce, that third party may have the right to intervene in an ongoing Illinois divorce case. Furthermore, either party to an Illinois divorce case may insist that a particular third party be intervened in their case to resolve issues between the three of them.
The Illinois Marriage and Dissolution of Marriage Act states that additional parties shall be includable in an Illinois divorce action.
“The court may join additional parties necessary and proper for the exercise of its authority under this Act.” 750 ILCS 5/403(d)
The Illinois Parentage Act also allows for additional parties under other cases when there is a child but no marriage.
“[A] proceeding to adjudicate parentage may be joined with a proceeding for adoption, termination of parental rights, the allocation of parental responsibilities or parenting time, child support, dissolution of marriage or civil union, declaration of invalidity of marriage or civil union, legal separation, probate or administration of an estate, or other appropriate proceeding.” 750 ILCS 46/611
The Illinois Code Of Civil Procedure allows for intervention of a third party in a divorce under additional specific circumstances.
“Upon timely application anyone shall be permitted as of right to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by an order or judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or a court officer.” 735 ILCS 5/2-408(a)
The party or the intervenor shall file a petition with the court asking the court to allow the intervention.
“A person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he or she proposes to file. In cases in which the allowance of intervention is discretionary, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” 735 ILCS 5/2-408(e)
It would be ideal if the Code Of Civil Procedure’s requirements were met as well as meeting the “necessary and proper” requirement of the Illinois Marriage and Dissolution of Marriage Act…but “necessary and proper” is probably enough. The court will determine if the intervention will be allowed.
“The right to intervene is generally within the discretion of the court” Baker v. Baker, 128 NE 2d 616 – Ill: Appellate Court, 1st Dist., 2nd Div. 1955
Illinois courts are fairly liberal in allowing interventions because they allow for the resolution of matters in one case instead of multiple cases.
“[T]he fundamental purpose of intervention is to expedite litigation by disposing of the entire controversy among the persons involved in one action, and so to prevent a multiplicity of actions.” Baker v. Baker, 128 NE 2d 616 – Ill: Appellate Court, 1st Dist., 2nd Div. 1955
However, there are requirements that must be met before intervention is allowed in an Illinois divorce.
Requirements For Intervention In An Illinois Divorce
An Illinois divorce court must allow a third party into divorce proceeding if they meet the following requirements:
“The trial court must grant a petition to intervene as a matter of right if (1) the petition is timely filed; (2) the representation by the parties already in the suit is inadequate; and (3) the party seeking intervention has a sufficient interest in the suit.” In re Marriage of Vondra, 994 NE 2d 105 – Ill: Appellate Court, 1st Dist., 2nd Div. 2013
“[T]he trial court’s discretion with regard to intervention of right should be limited to determining the statutory requirements of timeliness, inadequacy of representation, and sufficiency of interest.” In re Marriage of Perkinson, 498 NE 2d 319 – Ill: Appellate Court, 4th Dist. 1986
A timely petition isn’t of interest in an Illinois divorce because a divorce doesn’t have a statute of limitations and essentially is ongoing forever. But, most interventions, if requested after the divorce is finalized will be denied as untimely.
“Whether intervention is sought as a matter of right or by leave of court, the petition must be timely filed. Whether a petition is timely is within the discretion of the trial court. If a party seeks to intervene after judgment has been entered, and does not explain its failure to seek intervention prior to judgment, that party has failed to demonstrate due diligence and the petition to intervene may be denied as untimely. If the party was unaware of the original suit until after judgment was entered, intervention after judgment may be allowed.” Schwechter v. Schwechter, 486 NE 2d 340 – Ill: Appellate Court, 2nd Dist. 1985 (Citations Omitted)
The third party has to have some kind of interest in the divorce proceedings which is real and definable.
“One who petitions to intervene must have an enforceable or recognizable right, and more than a general interest in the subject matter of the proceedings.” In re Marriage of Perkinson, 498 NE 2d 319 – Ill: Appellate Court, 4th Dist. 1986
“[I]f a party’s interest is speculative or hypothetical this does not constitute an interest sufficient to warrant intervention.” In re Marriage of Perkinson, 498 NE 2d 319 – Ill: Appellate Court, 4th Dist. 1986
“In order to show inadequacy of representation, one must not engage in speculation but, rather, must allege specific facts demonstrating a right to intervene.” In re Marriage of Vondra, 994 NE 2d 105 – Ill: Appellate Court, 1st Dist., 2nd Div. 2013
Finally, the intervenor in their motion to intervene must attach a copy of their first pleading to the motion to intervene in order to show the court and the other parties what they intend to ask for.
“Attachment of the initial pleading which the party proposes to file has been held mandatory.” Schwechter v. Schwechter, 486 NE 2d 340 – Ill: Appellate Court, 2nd Dist. 1985
There really are only two kinds of interests a third party could have in a couple’s divorce: 1) kids and/or 2) marital assets.
Intervening In An Illinois Divorce To Obtain Visitation With A Child
“Grandparents, great-grandparents, step-parents, and siblings of a minor child who is one year old or older may bring a petition for visitation and electronic communication under this Section if there is an unreasonable denial of visitation by a parent that causes undue mental, physical, or emotional harm to the child and if the following condition exists:
the child’s parents have been granted a dissolution of marriage or have been legally separated from each other or there is pending a dissolution proceeding involving a parent of the child or another court proceeding involving parental responsibilities or visitation of the child…and at least one parent does not object to the grandparent, great-grandparent, step-parent, or sibling having visitation with the child.” 750 ILCS 5/602.9
One parent would have to agree to the parenting time anyways…which makes intervention by a grandparent, great-grandparents, step-parents, or siblings pointless because the representation by that parent in the suit is adequate to guarantee the grandparent, great-grandparents, step-parents, or siblings’ rights.
Children Intervening In An Illinois Divorce
Children are definitely affected by a divorce but they do not need to intervene in their parents’ divorce because there is already a system for ensuring that a child’s interests are protected: the appointment of a guardian ad litem or child representative.
“In any proceedings involving the support, custody, visitation, allocation of parental responsibilities, education, parentage, property interest, or general welfare of a minor or dependent child, the court may, on its own motion or that of any party, appoint an attorney to serve [as a guardian ad litem or child representative]” 750 ILCS 5/506(a)
The Illinois divorce court will decide if independent representation of a child is necessary.
“[T]he right to representation under section 506 is not mandatory. Rather, it is subject to the trial court’s sound discretion “and the failure of the trial court to appoint a guardian sua sponte is not an abuse of discretion.” In re Marriage of Vondra, 994 NE 2d 105 – Ill: Appellate Court, 1st Dist., 2nd Div. 2013
Adult children, who may have an interest in their parents’ divorce (for the purposes of paying for college, for example) have no standing to intervene. “[S]ection 506 applies to minor children [not adult children]” In re Marriage of Vondra, 994 NE 2d 105 – Ill: Appellate Court, 1st Dist., 2nd Div. 2013
Intervening Third Parties With An Interest In Marital Property In An Illinois Divorce
The most common and viable intervention is when the marital property is being divided and a third party has an interest in that property.
In this scenario, it’s the married or formerly married couple who may want to bring the third party into their divorce rather than the third party seeking to intervene. This is called “joinder”
“Any person may be made a defendant who, either jointly, severally or in the alternative, is alleged to have or claim an interest in the controversy, or in any part thereof, or in the transaction or series of transactions out of which the controversy arose, or whom it is necessary to make a party for the complete determination or settlement of any question involved therein, or against whom a liability is asserted either jointly, severally or in the alternative arising out of the same transaction or series of transactions, regardless of the number of causes of action joined.” 735 ILCS 5/2-405
For example, when a couple has purchased real estate with a third party (a parent or someone who lent them money) and that third party is on the deed, that third party will need to be included in the divorce to determine exactly how the marital property will be divided amongst all of the parties.
A spouse may have given or sold marital property to a third party in order to make the party indivisible as formerly non-marital property. In reality, the third party will merely return some or all of the marital property to one of the spouses after the divorce is finalized. This is called a fraudulent conveyance and is the basis for intervening that third party.
A gift or sweetheart deal is good evidence of a fraudulent conveyance.
“A conveyance may be fraudulent in law if the transfer is made for no consideration or for inadequate consideration” Kardynalski v. Fisher, 482 NE 2d 117 – Ill: Appellate Court, 2nd Dist. 1985
If the third party got the asset in a suspicious manner, a court can look into whether the transfer is fraudulent or not.
“The general rule is that a transferee is chargeable with acquiescence in a fraudulently intended transfer where he is in possession of facts and circumstances which are not reconcilable with ordinary business integrity or would otherwise put a prudent person on inquiry.” Hofmann v. Hofmann, 446 NE 2d 499 – Ill: Supreme Court 1983
If the third party has any intent to return the formerly marital asset, it is a fraudulent transfer.
“[A] transaction is a sham and tantamount to fraud when it is colorable or illusory. An illusory transfer is one which takes back all that it gives, and a colorable transfer is one which appears to be absolute on its face but which, because of a secret or tacit understanding between the transferor and transferee, is not an actual transfer because the parties intended ownership to be retained by the transferor. A transfer is a fraud on marital rights when the transferor in reality has no intent to convey any present interest in the property, but, in fact, intends to retain complete ownership.” Hofmann v. Hofmann, 446 NE 2d 499 – Ill: Supreme Court 1983 (Citations Omitted)
Such a conspiracy is difficult to prove and proof is required.
“[F]raud will not be presumed in this State and must be proved by clear and convincing evidence” Hofmann v. Hofmann, 446 NE 2d 499 – Ill: Supreme Court 1983
“Whether the conveyance at issue was fraudulent depends upon all the circumstances surrounding the transfer. A fraud must be proven by clear and convincing evidence” In re Marriage of Frederick, 578 NE 2d 612 – Ill: Appellate Court, 2nd Dist. 1991 (Citations Omitted)
Once you’ve intervened the party to the fraudulent transfer, the third party can be forced to return the asset to the marriage for proper division. If the asset cannot be returned, the third party can be ordered to hold the asset in constructive trust for the original parties’ benefit.
Divorce is bad enough with two people fighting. It gets really ugly when there’s additional parties included. If your Illinois divorce case needs to intervene someone or you need to intervene in someone’s Illinois divorce case, contact my Chicago, Illinois family law firm to learn more about all of your options.